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CBD in Wisconsin – What Does it Mean?

March 8, 2017

To some limited fanfare, the Wisconsin Legislature has recently passed proposed bills regarding cannabidiol, better known as CBD oil. The agreed-on bill is on its way to the Governor’s desk, where it is expected to be signed into law.

CBD oil is derived from marijuana, and advocates have touted its medicinal properties, especially in treating pediatric seizure patients. The goal of these bills is to address deficiencies in prior legislation, known as Lydia’s Law. Lydia’s Law first made CBD oil use legal, but left many unanswered questions. Critics of the new legislation contend, it appears correctly, the law still does not create access for those seeking CBD oil. As there remain many questions about what the law does and does not do, we provide the following Q & A to assist providers and patients in understanding this measure.

Is CBD oil medical marijuana?

No. Medical marijuana, in all its forms, relies in part on the presence of tetrahydrocannabinol (THC), the psychoactive ingredient in marijuana, for therapeutic effect. Under state law, it is the presence of THC in a substance that makes it illegal. CBD oil is, as it was under Lydia’s Law, excluded from the definition of THC as long as the psychoactive components have been removed.

Does a patient need a prescription to get CBD oil?

Sort of, but not exactly. Because federal law has not drawn the distinction state legislatures have around CBD oil, it remains a Schedule I drug. Because it is a Schedule I drug, there is no legal authorization for a physician to write a “prescription.” This has been addressed by the Legislature by requiring that patients possess a “certification” from a physician to allow them to possess CBD oil. A “certification” is a letter or other official documents issued by a licensed physician that contains the name, address and telephone number of the physician, the name and address of the patient who is issued the letter or document, and the date on which it was issued. The date is important because the certification is good only for one year from the issued date, or such lesser time as may be specified in the document.

Can providers other than physicians write certifications for CBD oil?

No. While other providers, such as advanced practice nurses and physician assistants can write prescriptions for many drugs, again, this is not a prescription. The legislation, as written, allows only for physicians to author certifications.

What conditions can CBD oil be authorized to treat?

CBD oil can be authorized for any medical condition. Under Lydia’s Law, CBD oil was only authorized for use in treating seizure disorders. Under the new legislation, this restriction has been considerably broadened and requires only that CBD oil must be for a medical condition.

Can any physician or pharmacy dispense CBD oil?

No. CBD oil may be dispensed by either a pharmacy or a physician approved under the law which allows for investigational drug research. The approval has to come from the federal government, with the assistance of the Wisconsin Controlled Substances Board.

Is there an actual distribution network in Wisconsin for CBD oil?

No. This is one of the primary complaints about Lydia’s Law and one of the great perceived shortcomings of the recent act. It is not at all clear how pharmacies or physicians would go about acquiring CBD oil for dispensing to patients. While CBD oil is a commercially available product, all manufacturers are out of state. The FDA takes the position that, under Section 301 of the Food, Drug and Cosmetic Act, the interstate shipping of CBD products is prohibited, though it has also suggested that enforcement is very low priority.

The Trump administration, primarily through Attorney General Sessions, has sent confusing signals, specifically suggesting that it may move to more vigorous enforcement of all laws dealing with marijuana, but may carve out treatment for pediatric seizures. Given the current state of federal law, many understandably perceive there being unacceptable risks involved with the interstate shipping of CBD oil. Some Wisconsin legislators proposed an amendment to the bill to address this shortcoming which would allow, in part, the in-state production of CBD oil. The amendment was defeated on a party-line vote and did not get out of committee.

Marijuana policies are rapidly evolving throughout the country. Different states, as well as the federal government, are addressing the myriad of issues these changes bring in different fashions. There are many who see steps, such as those taken by Wisconsin, on CBD oil, as a cautious beginning to changes here that may lead to acceptance of medical marijuana and even, eventually, adult-use regulations. For the time being, though, this is a law which allows for the constrained use of an individual product in limited circumstances but provides no specific safe harbor for acquisition of the product.

For more information about "CBD in Wisconsin – What Does it Mean?," contact Guy J. DuBeau at gdubeau@axley.com or 608.283.6704.

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